When can a store

be held liable?

BEVAN FRANK learns how retailers can reduce risk and avoid liability if customers get injured in their stores

A few months ago the following incident happened in Shop XYZ* in a major retail centre. A woman, wearing a long skirt, was running on a treadmill. The store assistant was standing next to her, checking on her footstrike, the way she was running, etc. Without warning, the woman stepped off the moving treadmill and stumbled. Her skirt got caught, trapping her foot against the moving treadmill, causing severe injuries to her foot.

The staff assisted her, apologised and offered to pay her medical bills.“This was an unfortunate incident, which under the circumstances, was handled well by all parties involved,” a spokesperson for the store told Sports Trader.

Even though they immediately paid her medical bills, the store was also served with a loss of income claim, as the woman was unable to work properly because of her injured foot.

Consumer Protection law expert Marlon Shevelew, Senior Attorney at Marlon Shevelew and Associates, tells Sports Trader that where any injuries to a customer result from goods, the applicable provision is section 61(1) of the Consumer Protection Act.

The relevant part for Sports Trader readers is that the producer or importer, distributor or retailer of any goods is liable for any harm which is caused wholly, or partly, as a consequence of, among other things, inadequate instructions or warnings provided to the consumer pertaining to any hazard arising from or associated with the use of any goods, and this applies irrespective of whether the harm resulted from any negligence on the part of the producer, importer, distributor or retailer.

In other words, even though the shop assistant assisting the woman could not anticipate that she would step off the moving treadmill, there should have been instructions for the use of the treadmill to make provision for any possible move a customer may make — even those that defy common sense.

When harm results, the consumer does have a right of recourse in the form of damages, including any economic loss that may result.

Shevelew points out that with regard to damage not caused by goods, section 58 of the Consumer Protection Act is applicable. This stipulates that where any activity or facility is subject to a

(a) risk of an unusual character or nature,

(b) risk of which a consumer could not reasonably be expected to be aware, or which an ordinarily alert consumer could not reasonably be expected to contemplate, in the circumstances or

(c) risk that could result in serious injury or death, then the supplier must specifically draw the fact, nature and potential effect of that risk to the attention of consumers.

Responsibility of the store

When can a store be held responsible?

This would depend on whether the consumer properly assumed the risk.

Example 1: A purse gets stolen in a store

Shevelew believes it is unlikely that the retailer would be held liable, because the risk does not originate from goods supplied by the retailer. It is also not due to an unusual or extraordinary type risk for which the retailer can be held liable.

Example 2: The consumer slips on the floor

“We need to ask whether this was an unusual, or extraordinary, type risk,” says Shevelew. “It would usually not be, hence the retailer would not be liable — in the absence of negligence.”

Assuming, however, that this was an unusual, or extraordinary, type risk — like a floor being washed after a spill — the retailer could escape liability by displaying big warning signs as required by section 49 of the Consumer Protection Act. (See box)

Example 3: The testing of goods

Shevelew refers to section 61(1) of the Consumer Protection Act. “The question is whether inadequate instructions, or warnings, were provided to the consumer pertaining to any hazard arising from, or associated with, the use of equipment (e.g. a treadmill).”

Shevelew believes that the consumer would probably succeed in this matter. “There is no evidence that the consumer understood the treadmill’s operation before using it, nor the dangers posed by being on it with a long skirt. So the consumer could succeed in claiming the damages sought.”

In other words: don’t assume that your customers understand how equipment work and that they’ll use it with common sense.

The question arises as to where does a store’s responsibility ends? What can a customer not hold the store responsible for?

Shevelew says that the main principles are as follows: If the retailer was not negligent in regards to the harm caused to the consumer, and properly brought the risk to the attention of the consumer, then the retailer cannot be held liable.

Thus, if Shop XYZ had told the customer that using the treadmill with a long skirt was inadvisable, and that she must wait until the treadmill is stationary before stepping off, Shop XYZ would have been neither negligent, nor have fallen foul of the notice requirements in section 61 of the Consumer Protection Act.

Before the incident took place, Shop XYZ did have signs up saying that customers use the equipment at their own risk. But, the reality today is that it is simply not enough just to have a sign saying that the customer enters the store and premises at its own risk.

Where the store is at fault, it may not exclude its liability.

“The Consumer Protection Act specifically provides that a supplier (of a service or goods) may never exclude its liability for gross negligence,” explains Shevelew. In fact, it would usually not be permissible to exclude the liability of the supplier for any instance where he is at fault, because this would be unfair and unreasonable.

Even where the retailer is not at fault, he must still comply with the peremptory requirements of the Consumer Protection Act, specifically sections 49, 58 and 61:

Section 61 stipulates the instructions and warnings must be adequate in telling the consumer about any hazard that could arise from using the goods.

Section 49 (see box) sets out the requirements for informing the consumer of the risk involved.

Retailers can protect themselves

There are various ways that retailers can protect themselves from people getting injured in a store and then claiming damages.

The use of all equipment should be supervised in a proper manner. “Provide instruction to participants (especially novices) on how to use equipment and supervise them until they fully know, understand, and appreciate the risks and demonstrated adequate skill to safely use and operate the equipment,” says Shevelew.

“Document that these specifications have been properly met, and maintain these records in a secure place.”

Shevelew says that one can also take additional precautions, such as providing side safety rails, to help ensure the safety of certain population groups (like the elderly) that may have an increased risk of becoming unstable and lose their balance.

It can also be beneficial to have participants sign an assumption of risk document.

“This will help strengthen the assumption of risk defense for injuries caused by inherent risks, but not for injuries caused by the retailer’s negligence,” Shevelew says.

Retailers should also ensure that employees properly supervise the consumer’s use of dangerous or potentially dangerous equipment. Competent staff should be employed and managers need to provide proper supervision, as well as establish safety rules and regulations.

Marlon Shevelew can be contacted on 021 4257069 or marlon@marlonshevelew.co.za

* The store did not wish to be named.

Informing consumers about risk

Section 49 of the Consumer Protection Act requires a retailer to inform the consumer of any potential risk:

in plain language;

in a conspicuous manner that is likely to attract the attention of an ordinarily alert consumer, having regard to the circumstances;

before the consumer enters into the transaction or agreement, begins to engage in the activity, or enters the facility;

by proving the consumer assented to that provision (or notice) by signing the provision — or otherwise acting in a manner acknowledging the notice, and accepting the risk.

Risks from goods you sell

Suppliers and retailers are all at risk from consumers claiming compensation because they say that a particular product caused them harm.

There have, for example, been several instances in the US where consumers who purchased toning shoes sued the manufacturer because the unstable platform caused them to stumble.

Even though these shoes are advertised that the unstable sole will help with the toning of muscles, the consumers whose claims had been successful said that they were not warned that they should walk cautiously in the shoes.

Some manufacturers, like Skechers, now sell their shoes with a DVD containing instructions and warnings on how and where to wear their toning shoes.

Retailers could also avoid liaibility by warning customers who might be at risk — e.g. an elderly customer that walks with difficulty — that toning shoes might not be suitable for them.

The same goes for consumers purchasing any other equipment that might not be suitable — like a frail woman buying too heavy dumbbells, or a 200kg man buying a skateboard.